Other more "spontaneously" oppressive cultural devices, such as distortion of religious doctrine or implementation of arbitrary ethical values, stand (because of their typical logical vagueness) in marked contrast to the law, which requires definitive legal status for social entities that are to be governed by established rules and norms of social conduct.
The road to legal definition of slavery was not smooth. The English "common law," which formed the basis for all Anglo-British and Anglo-American legal practice in the seventeenth and early eighteenth centuries, was a system that sought to establish liability through precedent of what had been held liable in previous instances, distinguishing between entities that were capable of guilt and those that were not.1 These entities are either possessed of legal existence as persons with rights, or they are things created, possessed, and disposed of by legal persons, actual or fictional. In other words, it was at least in major part an issue of the assignment of the right of choice, of a right to exercise free-will. It was this problem in definition of legal status that appears to have been at the heart of law and legalities regarding Negro slaves in Anglo-British colonial America; the job was not easy, and full of fatal logical pitfalls.
A slave auction in which black families were often broken up when sold to slave buyers.
Copyright Chicago Historical Society
If there was any change of status regarding humans held in servile bondage in the laws of England, Virginia and Maryland during the colonial period, 1625 - 1789, then such development ought to be evident from examination of court records. Not only that, but it should also be fairly simple to trace precedent leading up to the establishment of "the peculiar institution," especially by means of the analysis of documentation evincing the denial of the slaves' personal legal sovereignty in such liberties as the power to make contract. Finally, some indication ought to emerge of the dynamic synthesis attempted by Southern jurists between rigid Roman Corpus Jvris Civilis and mutable common law practice.
During the period of nearly two centuries between 1605 and 1789, Englishmen living in America increasingly came to rely on Roman civil code for the legal support of slavery. Even so, having realized this, it is also very important to understand that this was not by any means the entire philosophical basis of the slavery imposed on Africans by Europeans. Indeed, legality was only a very small portion of the overall socioeconomic justification for slavery, relying as it did on a complicated system of beliefs that is not within the scope of this paper to address.
Rather, dispositions from Maryland and and Virginia, as presented in Helen Honor Tunnicliff Catterall's Judicial Cases concerning American Slavery and the Negro (1926 & 1936) are examined and compared for some indication of developments concerning the legal status of Negro slaves in those Anglo-British colonies. Remarkably, no biographical notes about Mrs. Catterall could be found, except her dates (1870 - 1933) and the fact that she was married to a now obscure professor of English, Ralph Charles Henry Catterall ( d. 1916). Few works referenced her study reference could be found to critiques of her work or resource to it in bibliographies attending other studies of American slavery.
Very considerable space is devoted to the creation of an historical Roman, medieval European and English context for the succeeding discussion of the judicial cases in Virginia and Maryland collected by Catterall. The majority of court records she exhibits for the seventeenth and eighteenth centuries in those colonies are lawsuit and probate. There is a serious hiatus in Maryland's official legal documents between 1771 and 1783. That colony also had manifestly far fewer slaves than Virginia. Nevertheless, Maryland has been chosen for comparison with Virginia both because of the age of its records concerning slavery and for its proximity to the other colony, with which (at first, at least) it was at some philosophical and legal variance, including the issue of slave status.
The Roman, Medieval European and English Legal Background
Some scholars might find it objectionable to refer to Roman precedent in the development of Anglo-American slave law during the early colonial period because of an assumed irrelevance of ancient issues to modern situations. In fact, English and Anglo-colonial magistrates had received educations steeped in neoclassical humanism. The seventeenth and eighteenth centuries could arguably be said to be the height of the Renaissance, when Latin and Greek learning penetrated to far corners of general education. Thus thoroughly educated in the thought processes of Republican and early imperial Romans, many American legal scholars learned entire speeches from Marcvs Tvllivs Cicero by heart and had whole blocks of il Corpvs Jvris Civilis committed to memory in the original language. Orators sought to emulate Roman rhetoric, legislators struggled to develop statutes worthy of Roman law and judges aspired to the clarity of Roman jurisprudence.
Certainly there are peculiar similarities between Roman and American practices concerning slavery. Even the same term was applied, in translation, to male slaves of all ages: "pver," in Latin, "boy," in English.2 Slaves were classified in the Roman legal code as "res," that is, "movable property," a concept a little too conveniently close to the English legal concept of "chattel." This it held in common with other ancient slave systems, from pharonic Egypt through Mesopotamia to India and China.3
Thus, the jurists of both Rome and Dixie felt comfortable in describing the legal condition of slaves, following the example of such jurists as Florentinvs and Vlpian,4 as one of "dual status." This was completely consistent with the Roman legal concepts of dvplex interpretatio, "double interpretation," and in vtramqve partem, "argument from both sides of a question."5 This accepted duality in Roman legal practice is best illustrated by the essential contrast between ivs natvrale and ivs gentivm. Roman civil code, even in its most important revisions by Justinian I (527 - 565 A.D.) and Leo VI (886-912 A.D.) "the Sage" of the Macedonian Dynasty, remained ultimately pagan in that it dealt with what was understood to be immutable physical conditions, devoid of salvation by grace or divine charity, except as described below. Liability was established by means of authoritative, even omniscient pantocrator ("pantocrator" or "all-ruler") declaration ... the law itself was thus divine. Roman reasoning stemmed from the assumption that ivs natvrale, the law of nature, was the source of all justice. Under ivs natvrale, according to the jurist Florentivs (c. 150 AD), "est hominem homini insidiari nefas esse," which is to say, "it is a grave wrong for one human being to encompass the life of another."6 All physical or mortal conditions, therefore, including those of humans, were immutable because they had been so ordained by nature, except in the wondrously omnipotent act of manv missio,7 the "stretching forth of the hand" by a remarkably powerful individual, such as (in theory) an aristocratic master or the emperor. Power had everything to do with the gesture of manumission. Later, Christian charity was attached to it, but was still secondary to the indulgence in a feeling of sovereign potency for those who exercised manumission. Slavery was tolerated, not merely because of ivs gentivm, which was held to be entirely separate from ivs natvrale ... "everybody else is doing it," even though it was clear that slavery was somehow wrong, but because manumission was an important artifact in Roman religiocultural doctrine. It was, then, the body of Roman civil law, especially the Corpvs Jvris Civilis Jvstiniani, to which the courts of colonial Virginia and Maryland were to directly refer for precedential support in the establishment of slavery.8 Even the notion of slavery as a "peculiar institution" translates with ease into Latin, as pecvlivm institvtio, and would not have been incomprehensible to Roman jurists of the middle and late empire.9
Plantation slavery and urban slavery existed in Rome, although the latter attained a more advanced and long lasting state there than in North America. American slaves had social functions similar to those of Rome, even extending to the assignment of positions in skilled craftsmanship, concubinage and domestic management. Like Christianity in America or Confucianism in China, Roman-style Stoicism as practiced by such adherents as Seneca10 sought to exert a humane influence on some aspects, sometimes, of the day-to-day administration of the institution, but none succeeded in ameliorating the basic inhumanity of slavery.
On the other hand, American slaves never achieved exalted status as governmental bureaucrats, corporate stewards or legal functionaries ... but this may be attributable to the fact that, by comparison, American slavery as an institution did not last anywhere near as long as that of Rome or the Byzantine empire that inherited and perpetuated it to the very end in 1453 A.D., only thirty nine years before Cristobal Colombo sailed on his first voyage to the New World. Neither did Dixie ever achieve as liberal a level of manumission and social transformation for freedmen as Rome did, in spite of any racial considerations. Roman slavery as an established, viable institution was already more than six hundred years old by the time the empire first came to be. American slavery, in comparison to that practice in the Mediterranean region or China, never attained the social development whereby slaves were incorporated into every sector of society. The civilization of the American South up until 1860, though gracious, remained primarily agrarian and rustic, in spite of the existence of such comparitively modest urban centers as New Orleans, Richmond and Charleston ... and had a long way to gobefore emulating the impact of imperial China or Rome.
Slavery in the early Middle Ages of north-western Europe (coexisting with the legally somewhat less onerous serfdom) was more similar to the agrarian form familiar in the United States, but in England and France the practice faded away between c. 1100 and c.1350. Throughout the period, slaves on the European mainland remained legal Things, in conformity with the remnants of Roman civil code, and as demonstrated in the Spanish Code de Tortosa (1272). They were also believed under the influence of Christianity, to be possessed of a salvageable soul which could only theoretically attain human status through conversion.11 Thus, although native slavery virtually disappeared after the depredations of the Black Death, Christian Iberians began again to keep unconverted Moors and Africans as slaves at the close of the fifteenth century. 12 The northern Spanish and Portugese of Barcelona and Lisboa, along with the Italian Genoese and Venitians had come into contact with the laws and customs of revered Constantinople via the Mediterranean trade routes, and tried to emulate her style. When Byzantium at last fell to Muhammed II and his Ottoman Turks, her philosophers and legates fled not only to Venice, Florence, Milan, Paris, Rome and Palermo, but to Barcelona, Madrid and Seville as well. Much of the devolping laws for the newly powerful principalities of Aragon and Castille depended upon the wisdom and guidance of expatriate Byzantine jurists. Soon, the newly united Spain would bring its version of Roman civil code, including that regarding slaves, to America.
Even so, slavery was not an open-and-shut case in late medieval Europe. Earlier, Thomas Aquinas (c. 1256) offered arguments that, because it was not present in man's original sinless state, that slavery could not be in the soul's best interest. Though slavery, in other words, ran contrary to free will in his estimation, Aquinas subscribed to the prevailing cosmology of a hierarchically ordered universe and social order, and acquiesced to the Canon Law acceptance of slavery, mitigated only by conversion and baptism. In England, the friend of Henry VIII's youth, Sir Thomas More (1516), incorporated an acceptance of slavery into his Utopia, although he believed himself to be describing a perfect English society.
The basic contradiction between the twin bodies of Roman natural and national legal theory was intensified by their contact with English common law. This system (by contrast to Roman concepts of rigid stasis) originated in primitive Anglo-Saxon Germanic tradition that understood all reality to be in a state of never-ending flux, thus producing a changeable physical and social order. One need only examine such early Anglo-Saxon literature as The Wanderer (c.800 AD) or The Ruin (c. 600) to appreciate the truth of this statement. Such a condition made the English common law system amenable not only to constant in promptv revision, but also to the Christian doctrines of free-will and charity. It is only logical that the clash between Roman code and the common law over slavery in the American setting should therefore produce intense debate over three centuries regarding the a relative weakness of some sort of "dual status" before the law for Negro slaves.
Jurisdiction over slaves had been left by ancient Roman judges by and large in the hands of the slave owners. This arrangement would have suited most post medieval Anglo-Americans in the southern colonies and states well, ... had it not been for the fact that Roman and British practices differed strikingly in their formulations. Whereas Roman law was generally conceived as rigidly authoritarian code, British law usually followed the ancient Germanic practice of relying on an accumulation of malleable precedent. Thus, British law (in its primitive form at least, regardless of the ancient Romano-Germanic concept of "servi" or servant-obligation) was subject to constant revision, and, as a consequence, so was definition of legal status. Roman civil code evinced no suchflexibility.
Thus, an abyss yawned between legal theory and common practice. Marc Bloch (c.1944) has written that
How were these manpower needs, then, to be met? This was a situation which remained unresolved during the seventeenth and eighteenth centuries in British North America.
In 1569, it was resolved by in a court of common law that "England was too pure an Air for Slaves to breath in." 14 This highly ambiguous statement cuts right to the core of the dilemma facing Anglo-British law concerning slaves: does it mean that slavery is not to be tolerated among the English, or is it implied that slaves are not worthy of the same air free English people breath? Perhaps it was understood by some people to be both things at the same time. That conclusion nonetheless is of no assistance at all to a jurisprudence, which requires clear definitions.
Exactly this sort of contention over definition of slave legal status continued in precolonial English and Anglo-American courts over the succeeding centuries. In the case of Butts vs. Penny (1600), it was found that "there could be no Property in the Person of a Man ... but by Compact or Conquest,"15 a concept with clear connections to the Corpvs Jvris Civilis . But in the very next breath, the same court hastily added "that Negroes being usually bought and sold among Merchants, so Merchandise ... there might be property in them ...." 16 This will appear to be sheer hypocrisy to some observers. In fact it is completely in careful keeping with precedent oriented common law judgment which, when legal antecedent was lacking, looked to other sources for indications of social norm. In America, Roman code would prove to be such a source.
Many "well-bred" Southern gentlemen by the time of the late seventeenth through the nineteenth centuries, particularly those destined to be upper level judges, magistrates and legislators, were habituated by their education to Roman models and thought as well as to the works of Aquinas and More. This was simply part of the standard curriculum for the children of the elite for that age, passed down from the likes of those late medieval scholars. They must have known that the central article of Roman law regarding slaves was that they were inferior by nature. 17 They also knew that Roman masters had the right to punish slaves at will, no matter how important that slave might be socially. In theory, a solid cosmological wall separated Rome's slaves and citizens, wherein freedom was confined only to free men, as confirmed by the Senate in AD. 56, an act of which American legislators appear to have been aware. To set a slave free reflected upon the freedom of all Roman citizens, for the liberty of freedman must be defended by all in order to ensure the freedom of all. Thus, setting a slave free was a tremendous responsibility as well as a powerful prerogative ... risky indeed, but one Romans were prepared to take. Southern Anglo-Americans eventually and evidently would not be so ready. It took a while for Roman civil code to begin to effect the commonlaw's dealings with slaves.
Another English court, 18 drawing on local practice, in 1682 found precedent supporting the property status of slaves in a judgment handed down in British India, but nevertheless found them by common law usage to be special cases, and handed them over to an administrator who was to see to their Christian conversion, and subsequent enfranchisement. Only toward the turn of the eighteenth century did attitudes toward slaves, especially in the West Indies, begin to harden on official account of their supposed reprobate heathenism. Legislators reinforced this judgment with long accepted biblical concepts, such as that of the God-punished OEebed or slave, condemned forever to servitude because of disbelief. Perhaps more realistically, strictures upon the slaves had been tightened simply because of their increased economic value as sugar plantation workers. The logical noose had begun to tighten on the neck of Anglo-American law.
The question of definable humanity in the slave continued to plagued the courts. Though his Negroes were impersonally "salable," an owner was not allowed arbitrarily to kill one "as he could an ox." 19 Indeed, in 1706 it was determined that "the common law takes no notice of negroes (sic) for being different from other men. By common law no man can have property in another, except in special instances ...."20 The opinion handed down by Sir Philip Yorke, Attorney-General of the realm at the end of 1729, stated that
This was an unfortunate decision, because by then American and British legal practice had already begun to diverge along the lines of economic expediency, supported by resort to Roman civil code. American courts in the South were to look more and more to Roman law concerning propertied interest for antecedents.
The common law, then, had become victim of its own flexibility, because in the search for legal precedent in dealing with slavery, jurists and legislators in the American colonies, as we shall see, ventured into the nightmare labyrinth of Byzantine-Roman legal code. The framers of the United States Constitution, many of them well versed in both English and classical Roman law, would leave open legal questions about federal regulation of slavery, thus fettering by reservation (if one may be permitted to use Hobbes' terminology) the development of effective federal policy toward slavery, and thus a uniform equality for all citizens. Legislation modeled on that of Rome was enacted mostly at the provincial level. In ignoring the discrepancy between love of liberty and the mercantile exploitation of human bondage, they were only emulating their philosophical and jurisprudent predecessors. The generation of Anglo-Americans born inthe 1840's would pay the greatest price in blood for this hesitancy.
When, just prior to the Civil War, one of the foremost American jurists of the time, Thomas Reade Root Cobb of Georgia, inquired into the nature of legal status for slaves, he found himself forced to be an apologist for, even to dissimulate somewhat regarding what was still an unsettled dilemma. Cobb was a Southerner in favor of slavery, but at the same time a scholar concerned with intellectual honesty. In his evident discomfort, he resorted not unsurprisingly to the example of the Ancient world both for justification and for evidence of the advancement of slavery in the United States over what he termed the "absolute" slavery of Rome and Greece. In his significant study, An Inquiry into the Law of Negro Slavery in the United States of America (1858), Cobb argued that the Roman slave was not merely a res or chattel, but lacked all recognition as a person. While this was true for the condition of a person while still a Roman slave, Cobb ignores the fact that manumission was common in the extreme, and that recent freedmen were frequently assimilated to society at a very rapid pace. Furthermore, the Georgian jurist stoutly maintains that the African-American slave occupied "a double character of person and property," 22 very much as though this duality were evenly balanced. As the court cases reviewed in the sections following reveal, this was certainly not the case. Cobb also rather glibly observed that "the Colonies having adopted the common law, and Negro slavery having no existence in Great Britain, there could be necessarily no provision of that law in reference to it, and consequently the power of the master until limited by legislation was absolute." 23 Thus he appears both briefly and succinctly to dispose of the power of precedent in common law, its possible extension to the slaves, and the legitimacy of British decisions as any sort of precedent in American courts, even though certain rulings outlawing slavery in England predate the American rebellion and revolution. Finally, in Chapter VI, "Of Personal Liberty," Cobb states flatly that
This was to be done (again, significantly, resorting to Roman code) via verberibvs flagellis, aliisqve pnis 25 ... that is, by means of beatings, whippings or any other similar form of violent and mutilative punishment or humiliation. Sociologically speaking, this then illustrates clearly that the South had become a society that was been compelled to resort to the use of coercive force because of the ultimate failure of law to support or enforce subservient behavior in slaves. The power of states rests on the threat and use of force "to maintain order and provide for the common good."26 On the one hand, seventeenth century English society employed more or less subtle and efficient forms of discrimination and bias designed to support the status quo ; on the other hand, it must be admitted that what legal restrictions there were upon the lower classes could be circumvented, and were not intended to subjugate, but to arbitrate between conflicting interests and protect English society as a whole against outside foes.27 If so, slaves might be set free if they were perceived as more valuable to the commonwealth in liberty than in bondage.This was not to be the case in the Anglo-American South.
Before one rushes to condemn Cobb for hypocrisy and perversion of the law, there is another factor to consider: the honorable Georgian jurist's formulation of a "dual status" for slaves is completely consistent with Roman legal concepts, then accepted as precedent in courts of common law. Further, a clear connection between the English and Roman systems existed in the concept of property, of "chattel" on the one hand and res on the other. Further, common law often considered labor and the laborer to be property.28 This was reinforced by the Common law's expressed need to distinguish between things capable of guilt and not capable of guilt.29 Because in common law liability was established by what had been judged liable before, due to the changeability of human condition, Southern jurists found it comparatively easy to synthesize from this mishmash of flexible common law definition and Roman authority used in place of precedent a supposedly, legally sound "dual status" for slaves.
The arrangement proved weak because, for many Christian Americans not versed in Roman jurisprudence, neither slavery not dual-status reflected divine intention. Religious and biblical supports for slavery were deemed narrow and thin, and Southern clerics were often perceived as having had to twist the scriptures in order to get the intended effects of subjugation required by the slave owners who paid their wages. Further legitimation for the system still being needed, force was used by Southern slave owners to make up for these legal and dogmatic weaknesses. The pretense of power latent in a state's legal authority, noted before, was forced to become manifest in the whip and branding iron, borrowed, not surprisingly, from Rome. This became obvious to many as secession and war approached, not only in the North but in Europe as well ... but not, by and large, in Dixie.
None of this is meant to imply that slavery in the British North American colonies or the new United States did not have unique characteristics, making it noticeably different from systems of compulsory servitude that went before. Even so, there were not only similarities but intentional evocations between Roman slavery in particular and that of North America. American jurists fell heir to legal concepts from Roman jurisprudence by way of the judgments handed down during the fifteenth and sixteenth centuries in the Byzantine, Latin and Islamic periphery of Europe: Byzantium and its Latin Empire, the Ottoman Balkans and Kievian Russia.30 Thus, it may be argued that there is a continuity of cosmology from the ancient Mediterranean world to the plantations of Dixie, wherein slaves were held to be slaves forever, utterly unable to perform that most critical act of freemen in common law, the making of free-will commitments, such as marriage or contracts. Slaves they would remained, born, bred and buried ... or might they not? Soon the fires of moral contentiousness over the dubious legitimacy of these laws would begin to smolder.
One last problem appears worth mentioning, but only through comparison of the long-term records of both England and the American colonies: an apparent relative lack in the latter of legally trained personnel. In England a separate specialized Court of Laws Merchant had existed since the mid-fourteenth century; solicitors and attorneys abounded in London and other provincial capitols who already specialized. Not so, transparently, in the American colonies. All briefs, at first, were heard by the same courts, staffed by people who too often had a rather rudimentary notion even of common law or legalistic spelling. In the proprietorships, it was a relatively straight forward matter of presenting one's case to the attention of the Grantee. In Virginia on the other hand, where independent government structures developed fairly early because of the failure of the Virginia Company and from imperial neglect, additional courts, often in some way appellate, were established in order to deal with contested decisions and stubborn cases. All mercantile briefs for a long time were heard by the same justices who decided murders and probate, and who had perhaps a better notion of what to do with the makers of mayhem and with sullen heirs than with rarefied definitions of humanity and legal status. Thus overwhelmed, it would be no wonder that some poorly trained judges might defer decision if possible, or rely on common social usage, than to risk error by dabbling in matters beyond their understanding. Thus, the establishment of disastrous precedent concerning trade in human flesh may have inadvertently beenaided by the desire to avoid legal error.
Cases in Virginia, 1625 - 1789
A court held in Jamestown on 19 September, 1625 very carefully handled an enthralled Negro brought to its attention as an indentured servant.31 Those very early English colonists were acutely aware that they themselves had signed on as servants to the Virginia Company, which still existed in that year and to which they had a continuing contractual obligation. Certainly pro forma, as well as in favorem libertatis, they wished to impress the directors of the company with their ability to be civilized and just in a distant and presumably savage land. It was probably also the only and last time for hundreds of years that the Anglo-Americans of Virginia treated a recently arrived African as anything approaching a legal equal. They had, after all, come to America in the naked if rather naive hope of gain, and too many were determined to get away with whatever exploitation they could devise.
In fact, the first twenty "Negar" slaves had arrived from the West Indies in a Dutch vessel and were sold to the governor and a merchant in Jamestown in late August of 1619, as reported by John Rolfe to John Smith back in London.32 By 1625, ten slaves were listed in the first census of Jamestown. The first public slave auction of 23 individuals, disgracefully, was held in Jamestown square itself in 1638. What were to become the parameters and properties of the "peculiar institution" were defined in the Virginia General Assembly from about 1640 onwards. Negro indenture, then, appears to have been no more than a legal fiction of brief duration in Virginia. Black freedmen would live in a legal limbo until the general emancipation in 1864, unable to stand witness in their own defense against the testimony of any Euro-American. The General Court dispositions that appear after 1640 seem to support this contention. Barbados was the first British possession to enact restrictive legislation governing slaves in 1644, and other colonial administrations, especially Virginia and Maryland, quickly adopted similar rules modeled on it. Whipping and branding, borrowed from Roman practice via the Iberian-American colonies, appeared early and with vicious audacity. One Virginian slave, named Emanuel, was convicted of trying to escape in July, 1640, and was condemned to thirty stripes, with the letter "R" for "runaway" branded on his cheek and "work in a shackle one year or more as his master shall see cause."33 Shades of Rome! This was most certainly not a contractually obligated indentured servant, however oppressed but consistent with English common law, that could expect release from his contract after a time. Rather, this was an abject slave, subject to the court's definition of him as mercantable and movable "property," as chattel or res, and to his master's virtual whim. Indeed, the general assembly of Virginia in 1662 passed an act which directly and consciously invoked Justinian code: partvs seqvitvr ventram, whereby a child born of a slave mother was also held to be a slave, regardless of its father's legal status.34 A few years later, the population of Africans in bondage in Virginia reached about 2,000, and another statute (1667) established compulsory life servitude, de addictio according to Roman code, for Negroes ... slavery had become an official institution.35
But that same issue of personage versus bondage had not been silenced. While in 1671, a "negroe weoman" was included in a delivery of crops, as though she were part of a cargo of produce,36 the very next year an African named Edward Mozingo successfully sued the man to whom he had been indentured for twenty eight years, being declared " free to all Intents and Purposes."37 These cases, and others like them, seem to indicate that in the late seventeenth century, it was becoming customary under Anglo-Virginian common law to treat Africans according to the status they appeared to be possessed of when they came under the court's jurisdiction. Was that one brought in as a slave? Then it was only a piece of property, having no legal status in and of itself. Did this one come under contract to the colony? Then this person was potentially free, because of his or her power to make contract. Yet common practice and legislation was, as has been seen, already beginning to erode the freedman's rights. The court opinions began to express well concealed confusion. In April, 1674, a court concluded that
Obviously, the judge for this case, in his uncertainty about what status to accord Mary, put the burden of proof on the men claiming ownership of her to show whether or not she was indeed "property." Careful examination of the wording of the judgment, however, reveals that the court was already biased (in keeping with Roman precedent in ivs gentivm, perhaps) toward the interests of the "owners;" it was upon Colonel Vassall's word alone that Mary's incipient liberty or endless enthrallment depended.
The next thirty-odd years, according to the cases cited in Catterall's study, witnessed a further astriction of legal opinion regarding slave status. In the view of Judge John Holloway in probate court of 29 March, 1718, a "Mulatto Girl Sue" and her children were treated as heritable property in which the executors had right of ownership " because it must immediately vest in somebody."39 There was never any question at all that it might vest in Sue herself ... she was purely property, because of "Virginia Law 1705,"40 and therefore without rights.
Though the matter appears to have deteriorated over the next fifty years, the issue of slave status still would not die. The cases of Gwinn v. Bugg (1769) and Howell v. Netherland (1770) had complicated judgments concerning the termination of indenture. Both involved misogyny and the confusion of legal status for the off-spring, with which legislative action in 1691, 1705, 1723, and 1753 had not dealt effectively. In both instances, the court ruled in favor of the plaintiffs suing for their freedom, though with evident reluctance and a desire that the legislature should resolve the matter of nati natorvm et qvi nascentvr ab illis, whereby the status of the grandchildren of misogynous unions could be determined with certainty.41 Otherwise, any slave was " distinguished as lands, the slave being worth as much as the ground he cultivates. For this reason our laws have put them on a footing with lands ...."42 There is a psychological symbolization expressed here as well as a legal opinion: the slave was no longer even upright like other human beings, but at one with "every creeping thing that creepeth upon the earth," to quote Genesis, 1: 26, in the Standard Authorized or "King James" Version.
When a certain Charles Moorman died in 1778, he started a series of litigations that would apparently go on for nine years: in his will, he sought to free his slaves. It was argued that the "laws of the land will not admit of such freedom,"43 and it took a special act of the commonwealth's general assembly in 1787 to carry out "the benevolent intentions of the said Charles Moorman," making them immediately free, as if born so; and their increase were also to be free. All under twenty-one and eighteen were to be free when they attained those ages, and the increase of those free at a future period were to be free with the parents ... This was ... pursued by a majority of the Court.44
What happened, to bring about what appears to be this legal anomaly, in a system that increasingly denied Negroes any humanity at all? Perhaps it was simply because of the fact that the gesture came from the commonwealth's legislature, to which the lower courts looked for guidance. Possibly, the law makers also wanted to signal solidarity with the libertarian ideals of the recently ended war of rebellion. In any case, the courts quickly returned to their accustomed modvs operandi.
Cases in Maryland, 1642 - 1784
On Munday 19th Sept. 1664 ... came a member from the lower howse that the upper howse would pleased to drawe up an Act obligeing negros to serve durante vita they thinking itt very necessary for the prevencion of the dammage Masters of such Slaves may susteyne by such Slaves pretending to be Christened And soe pleade the lawe of England.45
Before the day was out, the desired act was drawn up, amended and passed by both houses. Its language carefully avoided mention of the possible enfranchisement of slaves through conversion, but came down very hard on indentured Anglo-British women who wanted to marry African slaves: their children would not become free when her indenture was over, but would be slaves for life, in partvs seqvitvr ventram, "as their fathers were."46 This was only a couple of years after Virginia passed similar legislation. Yet for a very long time, Maryland court language was very careful to avoid the use of the word, "slave," even though a majority of the cases appear to be lawsuits involving the transfer of Negro servants and a great deal of tobacco as part of the awards. The legal establishment of slavery would take somewhat longer in Maryland than in Virginia, perhaps due to the mitigating influence of the Calverts, the Roman Catholic proprietors of Maryland, headed by their Lord Baltimore.
Although that law binding the slave children of indentured women was repealed by Lord Baltimore himself in 1681, to accommodate one of his family's favorite servant woman, "Irish Nell," her descendants, William and Mary Butler, were in 1770 defined as slaves. Nothing they could do by lawsuit appeared to be able to overcome the doctrine borrowed from Roman civil code that by then had come to prevail in most other slave-holding areas. Petitioners to the Provincial Court were more successful in the 1780's and 90's, but only if they could prove without stretching the rules of evidence too much that a fairly recent grandparent had been a free-born Europeans. Emancipation was a little more liberal in Maryland than in Virginia, in that light skinned slaves often had only to offer proof "by hearsay" that some ancestor had been free, and that slaves could be liberated "by intention" in their owner's wills, even though certain qualifications had not been met. Nevertheless, it was the effort of some legislators to distance their province from the provisions of the original charter granted to Sir George Calvert, that colonial law and custom should "be agreeable to the rights and customs of England."47 Slavery never became institutionalized in England as it did in Maryland or Virginia, where what amounted to a slave code in the rigid Roman style was to grow up that often conflicted with the spirit of precedence in common law.
Indian slavery seems to have occupied most of the attention of the courts in Maryland's first decades, much more so and later than Virginia, although Negro slaves were about as well. Very early, all "servants" appear to have been classed with livestock, if the abundance of lawsuits and bonds are to be believed. The function of the courts seems to have been a much more forthright exercise in common law. Perhaps this is because Maryland was a poorer province than Virginia, or because most early courts were presided over by one of the Calverts.
An appalling case of the killing of a defiant slave via verberibvs flagellis, aliisqve pnis in 1658, described in some detail in the record of testimony,48 attracted an official inquiry and fine by the colony's proprietors. The point made was that the slave had been treated with excessive brutality by his master, and that the court found this reprehensible. Certainly, Africans in Maryland, slave or free, were held responsible for murder, and likewise (as in England and Virginia) a European could not kill an African without penalty.49 But did such decisions establish legal status for slaves? The record up until the year 1665, as set down by Catterall, is not at all clear.
A significant enactment in October of that year by proclamation of Philip Calvert established "that noe person ... shall trade barter, commerce or game, wth (sic) any servant, except hyred servants, within this Province, without Lycence first had ... from [ their ] master."50 This is the first clear indication in these records that slaves were denied the right to make contract, and thus lacked one of the primary attributes of freedmanstatus.
Edward English, a Negro slave, exhibited his petition for freedom to the Baltimore County Court in May, 1681.51 His case represents an interesting reinforcement of what has been revealed before in this study: his translation from slave to freedman depended upon the establishment of a contract he had made with a man who inherited him. The language of the disposition is very careful and specific. Whereas in Virginia, English's capacity to make contract in the first place would probably have been denied, and the case dismissed, the Baltimore court, surprisingly, responded by classifying English an "Orphan," and freeing him! This, however, was in keeping with the spirit of common law, clearly showing how human freedom in Maryland at least, in those days, could be dependent on an act of personal sovereignty, such as the making of a legal commitment.
In the 1680's, the courts became less squeamish about employing the word, "slave," regarding Negro bondsmen. This occurred in connection with the commission of heinous crimes, where the punishment became life servitude as slave. It also seems to have been coincident with a more forthright treatment and appraisal of African slaves as chattels. Ann Smith, "a Spinster," was condemned to death in December of 1696 for the murder of a Negro boy ... but was reprieved.52 The next year, what seems to be an African-European couple and their "mulatto" child were sold and fought over, without any regard for their possible legal rights.53 Thus, as the century turned, any rights Negroes had under the relatively liberal administration of the Calverts in the seventeenth century drained away into the abyss of economic expediency. Even the names of individual slaves, noted previously as a matter of course, begin to vanish from the dispositions.
The rate of incidence in crime punishable by death among the slaves also began to rise, according to Catterall's collection. Whereas most cases before the courts previous to 1700 had been lawsuits, the next ninety years saw a definite increase in the number of slaves condemned to death. Death sentences for African bondsmen increased almost four-fold from the 1740's through the 1760's, from 7 instances to 26, a rise of nearly 371%. During the same period, there were no death warrants issued for slaves only 33.3% of the time: for five years in the 1740's, three in the '50's and two in the '60's. The decade average rose from below .7 warrants issued at the end of the 1730's to almost three by 1770. Sixteen out of thirty years saw two or more slaves executed for their crimes. This represents far more cases in Catterall's Judicial Cases for Maryland than those of masters condemned in any way for harming their slaves.
One is tempted to wonder if the increase in slave crime was in response to the loss of what little legal status they had enjoyed before, and the insensitivity with which they were traded. There was, in fact, a statute enacted in 1752 that denied the validity of manumissions executed in the master's last illness, but otherwise there is no indication of the truth of such speculation in Catteral's work.
By a remarkable decision in 1760 concerning a Guinea native named "Captain Gray," the court opined his complaint groundless, that he could not be a slave because he was a freeman stolen from the African coast.54 Even though his status there may have been classified as free, nevertheless because of a theft he committed on board the slave ship as he was delivering others into bondage, he was not redeemed by his employer in Guinea. This reinforced the precedent of slavery-as-punishment established earlier in the century in Maryland. It was also a further erosion of legal status, in that it accepted uncritically as precedent the supposed common practice of Guinea chieftains, in ivs gentivm one supposes, of selling thieves into slavery.
Seven years later, a key opinion was handed down wherein the estates of two mulatto brothers were declared escheatable because they were considered bastards, even though their parents had been married and they themselves had attained freedom. Even so, the judge assumed that the parents had been slaves, and, falling back again on Roman civil code as so many Virginia jurists had already, declared that since slaves were incapable of contracting marriage, that their offspring thus "had no civil capacities to take by purchase, or take or transmit by descent, whilst in their original state of slavery."55 Not only had slave rights been eliminated, but freedmen's rights of contract and ownership were now to be in jeopardy.
One surprise remained in the century. Mary, a slave living in 1791, petitioned the courts for her freedom, and won. The victory for her must have been particularly sweet, for as the daughter of William and Mary Butler (page 17) she was thus the direct descendent of Irish Nell. She, whose parents had been forced back into enthrallment in 1770, finally achieved the status that Lord Baltimore had wanted for all of Nell's posterity.56 Most other slaves, by the turn of the nineteenth century, were not to be so fortunate; only two others were granted their freedom by the courts before 1800.
The landmark judgment in the case of Somerset v. Stewart in England, decided by Lord Mansfield in June of 1772, declared:
Thus slavery could not exist in England, regardless of socioeconomic implications, and the final push for statutory abolition began, culminating a half century later an the empire-wide ban. But in America, by 1789, this decision appears to have had little effect, in spite of the expressed delight of anti-slavery Quakers. The statutory legal structure built up over the past century and a half effectively restricted the liberating benefits of common law to Euro-Americans exclusively. The Negro slaves had by 1790 reached their full definition as dehumanized marketable commodities. A lawsuit in that year, in Virginia, apparently was brought for satisfaction in the transfer of a group of "11 negroes belonging to Benjamin Pynes ... i (sic ) saw them when down the country, and offered him 330 pounds for the whole."58 This sounds more like a trade in dry goods or agricultural products than in human lives, and there is no reason to believe that the participants in this transaction saw it as anything but a simple and straight-forward, absolutely amoral business deal.
The slave in the new United States of America was now legally indeed and irredeemably a Thing, not a person. Testimony from only one Caucasian witness was needed to convict a slave, who was not able to act in his or her own defense. English common law, as practiced in America, had been made to accommodate incompatible Roman civil code as precedent. The expedient and convenient Roman concept of "res" had (in spite of Cobb's legal objection to the contrary) been accepted completely in socioeconomic common practice, in ivs gentivm, and the courts supported the institution.
In thus eliminating the slave's right to exercise free-will, and replacing it with a "dual status," Southern jurists said, in effect, "slave, your body and its capacity to labor, de addictio and in partvs seqvitvr ventram, do not belong to you. Yet we are forced because of various circumstances, especially in favorem libertatis et de spiritvm inhærens natvrale, to recognize that you are apparently possessed of free-will that you are capable of using. Should you choose to seize control of this body for your own purpose in the commission of a crime (such as stealing that body from its owner by attempting escape, or by using it to kill another body) you will be held responsible for that crime. Correction will be brought about via verberibvs flagellis, aliisqve p nis, to the extent that in some instances the body may be executed, that the ill-choosing free-will may be removed from the presentation of threat to ordered society." Hypocritical, erroneous or just plain unwieldy this logic may be, but it is hoped that this study has given an indication of the long process by which such reasoning developed and was supported in the slave holding provinces of British North America.
The institution of slavery in the United States of America appears to have been continuous with that of ancient Rome, by way initially of the Byzantine Empire which passed its practice and laws concerning slavery on to the Iberian nations before its demise in 1451. Through enslavement of American aborigines de conquisitvs and Guineans de contractvs after a fashion, the practice was spread to other Europeans who wanted to profit from the lucrative trade to the monstrous operations in Iberian America. The institution spread laterally and rather slowly to the east coast of North America, where it came in contact and conflict with English common law. To support the spread by socioeconomic infiltration of slavery, American jurists quite logically appealed to the civil law of Rome when they found precedent lacking in common law, even though legal scholars back in England came to a different conclusion.
By 1800, anyone living in the southern United States with a high concentration of epidermic melanin was assumed a slave, unless by more or less difficult documentation that person could prove conclusively otherwise. The continuing uncertainty of the common law demanded the exposure of such proof. But even though slaves suffered horribly, it was the logical noose on the Anglo-American law's neck that tightened the hardest. Eventually, a subconscious recognition of the unworkable nature of "dual status" prompted extreme paranoid defensiveness in some southern Anglo-Americans. This disease would not be relieved soon, and then, only by the coincidence of gory cultural self-mutilation inflicted by civil war, some of whose helotist seeds were planted ages before northern Europeans ever reaped such noisome fruits on North American shores.
[full references are given in the bibliography]
1. Holmes, 21 - 22
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Cobb, Thomas R. R. An Inquiry into the Law of Negro Slavery in the United States of America. Philadelphia : T. & J. W. Johnson & Co, 1858. Excerpted in Rose (see below).
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